Payne v. Norwest Corp.
| Decision Date | 15 May 1997 |
| Docket Number | No. 95-36252,95-36252 |
| Parties | 79 Fair Empl.Prac.Cas. (BNA) 1303, 10 NDLR P 17, 97 Cal. Daily Op. Serv. 3643, 97 Daily Journal D.A.R. 6198 RadLee F. PAYNE, Plaintiff-Appellant, v. NORWEST CORPORATION, a Delaware corporation; Norwest Bank Billings, N.A., a Montana corporation; Norwest Bank Great Falls, a Montana corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David A. Veeder, Veeder Law Firm, Billings, Montana, for plaintiff-appellant.
Linda L. Holstein, Schatz, Paquin, Lockridge & Holstein, Minneapolis, Minnesota, W. Scott Mitchell, Holland & Hart, LLP, Billings, Montana, for defendants-appellees.
Appeal from the United States District Court for the District of Montana, Jack D. Shanstrom, District Judge, Presiding. D.C. No. CV-95-00035-JTS.
Before: WRIGHT, WALLACE, and HAWKINS, Circuit Judges.
RadLee Payne, a former employee of Norwest Corporation, appeals from the magistrate judge's summary judgment in favor of Norwest. The magistrate judge had jurisdiction under 28 U.S.C. § 636(c)(1). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.
Norwest terminated Payne on February 9, 1994, alleging insubordination. Payne asserts that Norwest's true motivation for firing him was not insubordination, but retaliation for his filing complaints of race, gender, age, and disability discrimination with the Montana Human Rights Commission (MHRC). Payne also alleges that Norwest terminated him due to his race, gender, age, and disability. The summary judgment disposed of all of Payne's discrimination and retaliation claims. Payne v. Norwest Corp., 911 F.Supp. 1299 (D.Mont.1995) (Payne ). In unpublished orders, the magistrate judge also ruled in favor of Norwest on a series of evidentiary issues. We review a summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996).
We affirm the magistrate judge with one exception: Payne's retaliation claim. We agree with the magistrate judge that Payne established a prima facie case of retaliatory discharge under Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.1994). He was engaged in a protected activity (he filed an MHRC complaint), he was then subjected to an adverse employment action (Norwest fired him), and the timing of his termination creates an inference of causation (he filed the MHRC complaint on January 31, 1994, and Norwest fired him on February 9, 1994).
Under Wallis, id. at 889, the burden of production shifted to Norwest to offer a legitimate reason for Payne's termination, which it did: insubordination. At that point, Payne needed to "produce 'specific, substantial evidence of pretext.' " Id. at 890, quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, Payne could no longer rely on his prima facie case; he needed to "tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Id. (citations omitted). This burden is hardly an onerous one: " 'the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext." Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995) (alteration in original), quoting Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).
In Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993), we held that "fundamentally different justifications for an employer's action would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason." See also Nidds v. Schindler Elevator, 103 F.3d 854, 859 n. 2 (9th Cir.1996). Payne argues that Norwest's varied reasons for why it terminated him and the close proximity in time between his MHRC complaint and his termination give rise to an issue of triable fact.
Norwest's stated reason for terminating Payne changed several times over a period of only a few months. First, John Koppelman, Payne's supervisor, told Payne on February 9, 1994, that Norwest terminated him for violating the "attorney-client privilege" by taping a message left on his voice mail that was not intended for him. On February 16, Norwest told Payne that it fired...
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